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02/05/2012

Physician-Assisted Suicide—Posner

Medical science has made and is continuing to make rapid advances in extending longevity. But frequently the extensions involve prolonging miserable lives without improving them—the lives of people gravely damaged in accidents (as by being rendered quadriplegic), or suffering from painful, even grotesque, illnesses (like amyotrophic lateral sclerosis), or horribly deteriorated mentally or physically by old age, or in terminal decline and clearly doomed though medical science may keep them alive for a few more months. Especially in the United States, with its culture of optimism (perhaps a consequence of its being a nation of immigrants) and its religiosity, most people want to postpone dying at whatever cost in discomfort. Why religious people tend to feel this way is unclear. For some Christians, dying in pain is welcomed or at least endured because it makes them feeler closer to Christ, who died in pain on the cross; others believe that the decision as to when a person dies is reserved to God—that is the stated basis of the official Catholic position that suicide is a mortal sin.

But not all people feel that way, even in the United States. Many people who are suffering acutely, or anticipating suffering acutely, incur net disutility from continuing to live, especially but not only very old people. Some people who want to die commit suicide, but others do not—out of fear that their attempt will fail and leave them even worse off than before, or because they lack confidence that they can kill themselves discreetly and painlessly, or because of the stigma that attaches to suicide, or because of the public character of a suicide—one cannot dispose of one’s own corpse. These people who want to die but shy away from committing suicide show by their inaction that actually they derive greater utility from continued to live, because of the cost of suicide to them. But they would be better off if they could eliminate that cost, or at least reduce it to the point at which they would consider themselves better off dead than alive.

Which is where physician-assisted suicide enters the picture. The costs of suicide that I listed in the preceding paragraph all disappear if a physician is the agent of death—even the stigma cost, because if killing a person who wants to die is a lawful form of medical “treatment,” this signals that suicide is proper, at least when a physician by assisting in the act validates its propriety.

The religious people whom I mentioned will not be assuaged; but religious people shouldn’t be permitted to impose their sectarian values (as distinct from the values they share with the population in general) on others, including both religious and non-religious people, who do not share the abhorrence that some religious people feel toward suicide.

Paradoxically, allowing physician-assisted suicide could (though it seems unlikely that it actually would) reduce the suicide rate. A just-published biography of the very distinguished federal court of appeals judge Henry Friendly reports that he committed suicide in his 80s because, suffering from a variety of ills that were not disabling and did not prevent him from doing his judicial work, he was afraid that he would become disabled and when that happened be unable to end his life though desperately eager to do so. Had he been able to pre-arrange a painless physician-effected death to occur when he reached a specified stage of disability, he would not have killed himself when he did. Physician-assisted death is thus an option, and a less costly one than killing oneself unaided.

Physician-assisted suicide is now legal in Belgium, Colombia, Luxembourg, the Netherlands, Switzerland, and three U.S. states (Montana, Oregon, and Washington). It is quasi-legal in France, and is tolerated in a number of countries in which it continues to be illegal. In the United States it is opposed by a majority of physicians, although mainly older ones. I think their opposition is based largely on public-relations considerations similar to those that make physicians unwilling to serve as executioners, though they would be the logical persons to give lethal injections to the condemned. The image of the physician as a lifesaver is blurred if he is also a lifetaker.

There is also concern that families of a demented or otherwise badly disabled person, or even health insurers and Medicare administrators, will pressure physicians to end the person’s life, even if it is known that the person would have wanted his life extended as much as possible regardless of the quality of that extended life. Nazi Germany undertook large-scale euthanasia in the 1930s, though mainly on eugenic rather than cost grounds; the program was abandoned under Catholic pressure but there is fear that physician-assisted suicide might be the precursor for renewed support of involuntary euthanasia—though that seems extraordinarily unlikely. Countries and states that authorize physician-assisted suicide impose strict requirements that minimize the danger of involuntary euthanasia—too strict, some believe (such as the requirement in Dutch law that the patient’s suffering be “unbearable” before he can invoke physician assistance to end his life). These requirements (which further reduce the stigma of physician-assisted suicide by confining the practice to cases of genuine desperation) are not airtight, or uniformly observed. Any system will be abused. The question is whether the incidence of abuses, combined with the other costs of the system, outweigh the benefits.

Jimbino: If a physician asserts that his conscience (or religious scruples) prevents him from assisting you, surely you could just grin and bear it, and do the job yourself? Or find a more sympatico physician.

If suicide is a rationale decision, why not let anyone assist in the suicide (the simplest way would be for the assistant to pull the trigger)? And we could avoid the problem of yet another intrusion of government into our lives. A few mistakes, one way or the other, but the cost would be considerably less than the cost of a government-regulated program (and probably not result in any net change in the mistake rate).

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Lee

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Anyone interested in learning more about
this issue should contact one of the three organizations who are devoted to the Death-With-Dignity movement. They are: A) Compassion & Choices which is devoted to spreading the word and trying to change state laws to conform to the laws in Washington & Oregon, B) Final Exit Network which is devoted to providing "Exit Guides" who can educate members in the most pain free methods of ending their life (even if they are not suffering from a fatal illness), & C) the Right-To-Die organization which is primarily devoted to spreading the word about the various methods of ending one's life via books, articles and clipping services from newspapers around the world.

There was a PBS program that followed an assisted suicide recently. The man was not that old, perhaps 60's, an engineer I think, bright with a decent sense of humor. He knew he was to be taken and rendered helpless by an inoperable brain tumor.

In the venue he selected (Sweden?) the patient has to participate in taking the final medicine or shot. So, at one point he realized it was time and accompanied by his wife made the trip and said their good byes. A touching moment to be sure, but the alternative? to spend time descending into helplessness?

BTW....... just this week there was an advance made in Alzheimers in which they've found the "bad stuff" migrating giving them clues as to how to delay or block the onset.

In our nation and all aging nations we're facing the huge problem of largely healthy boomers aided by life saving medical advances living well into their mid-80's where Alz or other dementia affects something like 50%. Given our tradition, religious traditions and the disease slipping up before one knows it........ I doubt we'll be "saved" from the budget busting effects of millions of patients opting for assisted suicide. Let's hope that breakthrough comes soon...... if it only delayed the onset by five years or so the effect would be tremendous.

Why would the assistant have to be a physician? Could not a new profession be established and operate under legal regulation so as to prevent murder? The medical and legal training required would be rather brief compared to the training of a physician or p.a. or nurse. . I believe that those members of the public who favor the legality of assisted suicide would prefer that physicians stay out of it and apparently the physicians would too.

I strongly object to Judge Posner's and Professor Becker's defense of a "right to suicide." I do so on a number of grounds. First, as John Locke, following Thomas Aquinas on the issue, argued although God has given us a natural liberty as a gift, such a gift does not include the moral warrant to destroy oneself.

Aquinas spelled out three compelling reasons against the case for suicide: "(1) Suicide is contrary to natural self-love, whose aim is to preserve us. (2) Suicide injures the community of which an individual is a part. (3) Suicide violates our duty to God because God has given us life as a gift and in taking our lives we violate His right to determine the duration of our earthly existence (Aquinas 1271, part II, Q64, A5)" quoted from the article on Suicide in the *Stanford Encyclopedia of Philosophy.* On this view, only God can take innocent human life.

David Hume offered a critique of the natural law prohibition on suicide along the following lines: (1) If we were to allow natural law to run its course unabated, then we would not treat disease and allow people to die prematurely (2) If we are to use reason to discover natural law that would, in turn, lead to our happiness, what then would preclude us from finding that suicide facilitates the happiness of people in some instances (3) God allows us to take actions that include suicide, so why is such a course against the Will of God when someone does take his own life? (Hume, *On Suicide*)

http://www.anselm.edu/homepage/dbanach/suicide.htm#A1

I see these arguments presented by Hume as flawed. In response to these arguments against the traditional understanding of natural law, a defender of the sanctity of human life could answer the first of Hume’s objections by saying that medicine is not a violation of natural law. Instead, medical science harnesses natural law to protect and sustain human life. The second of Hume’s arguments assumes that human happiness is the highest and only good. Such an assumption is doubtful in itself. One could argue that human development along spiritual and moral lines is an even higher good or even that the development of each person spiritually and morally is necessary for human happiness. Consider here Aristotle’s definition of happiness as “an activity of the soul in accordance with virtue.” Suffering might very well be an integral part of a more sublime form of happiness than merely feeling sustained comfort and delighting in sundry pleasures. In reply to Hume's third argument, God allows us to do all sorts of evil in order for us humans to act freely. Human freedom does not entail that God approves of each action anyone ever takes simply because He does not head it off as He could in His omnipotence. The potential to do evil is a necessary condition for free will.

Pursuing this line of thought even further, a totalizing hedonism is hardly compatible with human happiness. An absence of pain, of suffering, of obstacles, of disappointment does not seem to further happiness. Where is the suicide rate, a measure of unhappiness, greatest in today’s world? Is it where people are more or less affluent and where suffering and hardship are minimized or where people live at the subsistence level where they are more prone to suffer physically? The answer is the former, not the latter. When people one-dimensionally pursue and, to a large degree, achieve a life free from physical pain, hardship, and danger, over time, their lives can become characterized by boredom and emptiness. As Soren Kierkegaard dramatized in the first volume of his *Either-Or,* the hedonist, or the aesthete, lives a vacuous, fragmented life that ends in escalating but futile attempts to avoid a consuming ennui.

In contrast, as the Bible illustrates in its various biographies of heroes of the faith, hardship and suffering develop the person in a number of ways including his/her faith, compassion for others, and a clearer sense of self and inner peace that transcend one’s circumstances. Joni Eareckson, a contemporary Christian, who suffered a diving accident that left her as a quadriplegic bears out the deepening effects found in suffering. She also bears out John Stuart Mill’s fear that suicide irreversibly forecloses a future to someone who is momentarily overwhelmed by their circumstances and immediate pain. Joni Eareckson tells that she attempted suicide repeatedly just after suffering her accident. She goes on to say that after a painful adjustment period, she has been thankful for decades that her suicide attempts failed as she has come to the realization that her spiritual maturity has been the result of her suffering.

The Apostle Paul realized these possible salutary effects of suffering as he wrote in his *Letter to the Romans*: “Therefore, since we have been justified through faith, we have peace with God through our Lord Jesus Christ, through whom we have gained access by faith into this grace in which we now stand. And we] boast in the hope of the glory of God. Not only so, but we also glory in our sufferings, because we know that suffering produces perseverance; perseverance, character; and character, hope. And hope does not put us to shame, because God’s love has been poured out into our hearts through the Holy Spirit, who has been given to us.”

Moving now to Judge Posner’s claim that the traditional prohibition on suicide is not respectful of the rights of the individual, such a claim overlooks the entire philosophical foundation of natural rights. The historical and philosophical basis for our constitutional system of government and law comes from our English traditions as well as theological and philosophical developments that were articulated and put into action by the North American English colonists. Even seemingly secular arguments for most constitutional provisions had a religious basis. On this point, consider “From Covenant to Constitution in American Political Thought,” Donald S. Lutz, Publius, Vol. 10, No. 4, Covenant, Polity, and Constitutionalism (Autumn, 1980), pp. 101-133 Published by: Oxford University Press.

John Locke was particularly influential in organizing and articulating these social, political, legal, theological, and philosophical trends in his *Two Treatises on Civil Government.* These and related works heavily influenced the American Founders. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought” : Donald S. Lutz. The American Political Science Review, Vol. 78, No. 1 (Mar., 1984), pp. 189-197.

Here is Locke on the subject of suicide:

“For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one another’s Pleasure.” (Second Treatise, Section 6).

Locke bases his defense of individual rights on the endowment of life from God bestowed on each individual human. Because we are to preserve our own lives, which Locke elsewhere observes is present in each of us as instinctual, we are to extend this basic desire to others in the form of respect for all human life.

If we were to strip all Christian philosophical influences from law and societal norms, then we would also be forced to give up equal respect for all humans, tolerance, popular sovereignty, and the entire range of liberties which all have their origin, both historically and philosophically, in Christian teaching.

Finally, Judge Posner’s concerns about the dangers of euthanasia are well-founded as I have discovered since my mother fell and injured her head. I have been continually pressured to cut off her fluids and nutrition by doctors, nurses, and administrators at Baylor Hospital in Fort Worth, Texas, where I currently reside. I was forced to consult a lawyer to prevent a doctor from unilaterally killing mother. The scenario that Judge Posner doubts that can happen is happening now even in a supposed Christian hospital in a very conservative part of the country. My mother is now recovering and is fully coherent--no thanks to the influence of naturalists and hedomists who are exerting more and more influence in the nation’s hospitals. Consider the ideology of bioethics that Sally Satel warns of that flows from the same philosophical footing as Posner and Becker assume to be benign and humane.

Chris: You make your case well though it relies a bit too much on, some writers, apparently knowing more about the mind and intent of god than seems likely.

Still:

"If we were to strip all Christian philosophical influences from law and societal norms, then we would also be forced to give up equal respect for all humans, tolerance, popular sovereignty, and the entire range of liberties which all have their origin, both historically and philosophically, in Christian teaching."

.......... though "Christian" especially as the term has been maligned in the current era, seems more than a bit narrow considering even the diversity of our nation and that of the world, I appreciate for the balancing effect you mention on both "hedonists" (of the moment) and the creeping (soaring? rampant?) corporatism that seeks to diminish life to that of being a profitable cog in "The Market".

Best wishes to both you and your mother in your trying times.

Now please, when another topic comes up, take a moment to reflect on the worth and dignity of life, before supporting the corporatism that in what may well be the late stages of the periodic collapse of unstable, unregulated capitalism, borders on fascism and surely is fully entrenched in the All for the Rich agenda that has been dragging down our nation for the last 40 years. Jack

Jack, thanks for your reply and kind regard for my mother and me. I think we can see the dehumanizing effects of the health care industry becoming just that, a mere industry. Hospitals have degenerated into factories with doctors and nurses working in shifts as they mass produce health care services. Another big factor in our nightmarish experience at Baylor Hospital besides the apparent influence of a superficial bioethics ideology is the extreme application of the economic principle of specialization so that family physicians are nearly banned from the hospital in favor of "hospitalists" who are assigned to patients whom they have no on-going relationship with, and hence, are less likely to treat the patient as an end in herself, as Immanuel Kant would put it in his Second Formulation of the Categorical Imperative.

In response to your questioning of Locke's understanding of the origin and nature of rights and respect for persons, I would ask what alternative metaphysical foundation would you offer for respect for persons? There is none to be found in naturalism or in utilitarianism as Jeremy Bentham so pungently put it when he observed, in light of his ethical theory founded solely in hedonism, "Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts."

I might note that we simply do not see the respect for individual rights both theoretically and in practice developing in any other culture rooted in any other metaphysical paradigm.

For the Philosophical take on it all, I prefer the Existential position. We're all condemned to freedom in an otherwise unthinking and uncaring world. Such that life is entirely situational and that we are required to deal with it, however, by our conciousness and conscience...

Chris: On hospital practices........ I've long thought that Medicare/Medicaid is used to offset losing ER costs as "specialists" rack up charges on oldsters, and as we see the GP, for some reason, is largely left out of the game.

I don't know if we have to get to a humanitarian position by hanging our hats on one or another metaphysical racks, but as mentioned I do, as a practical matter appreciate the positions of Catholics and others as a counterweight to what I perceive to be FAR too much corporate power.

On this very day the, controversial, news here is that of a bill being introduced in the Legislature along the lines of "maternity leave" for working folks being assured of time off to meet with the teachers of their kids.

Either for it or agin' it, it's a sad commentary that such legislation has to be considered, much less implemented and perhaps enforced.

Thanks for your further comments, Jack. I would disagree that humanitarianism does not have a metaphysical basis. I would also disagree with humanitarianism's aversion to all suffering. I furthermore disagree with the humanitarian call to wholesale social and political change. I am in favor of ameliorating suffering when possible within certain moral bounds and doing so within the structure of the principle of subsidiarity.

In reply to NEH, I would distinguish between atheist and Christian versions of existentialism. Atheist existentialism is inherently nihilistic. The atheist existentialist takes the position that tne choice a person makes is inherently as good as any other as long as the person authentically chooses his course of action. So on this view, Hitler was as morally admirable as Mother Theresa. I see big problems with this sort of consequence of atheist existentialism, and atheism more generally.

Christian existentialism is quite different. For example, in the second volume of *Either/Or,* Soren Kierkegaard takes up a Kantian ethic in substance. Where Kierkegaard demurs from fully embracing an objective approach to ethics is not in terms of moral prescriptions but in terms of the mechanical nature of the ethical judgement that can follow from merely following moral formulas even if they are correct. What is lacking here is an involved sense of personal engagement in the lived, particular experience that the individual faces. The subjective character of the drama of a concrete individual confronting a moral challenge can be lost if we focus exclusively on abstract rules that apply universally. If ethics is totally objectified, then the person is reduced to an irrelevance in a philosophical system of thought. Such a development has the paradoxical effect of treating the person as a mere means to a moral end.

Here I completely agree with the existentialist, but it is the Christian variety of existentialism that avoids nihilism while preserving the role of the person on the spot who has to live out the consequences of his decision.

So I would like to correct one point. In France, the Physician assisted suicide is not legal. The patients rights laws of 2002 and 2005 give to the patient the right to refuse a treatment even if this decision drives him to death. The doctor should then take all necessary measures for pain relief. If the patient is no more conscious, the doctor must then consult the medical team, the patients'representant (if nominated) and the family, if he decides to stop the treatment because it is abusive and useless. Then the doctor decides by himself and is commited to palliative care and pain relief.

French opinion is widely in favour of Physician assisted suicide (more than 80%). The law change in favor of it, is in Francois Hollande who is candidate in the next April Presidential election.

This position is of course strongly contreversed by religious authority and bigots moralists.

As you say, those people want to take our Liberty.

If the longest life is not always the best one, the death which last too long is always the worse. Into death, more than anywhere else, we have to act as our soul command...For life, we have to report to others, for death, to ourself. The best death? the one we like.
Seneque, LXX letter to Lucilius